Trial on Unconstitutionality of Prop. 8 Begins in U.S. District Court; Plaintiffs To Testify First For latest information, visit equalrightsfoundation.org

The federal trial over the unconstitutionality of Proposition 8 will begin Monday, January 11 with an opening statement by attorney Theodore Olson, who with David Boies is leading the legal team assembled by the American Foundation for Equal Rights to litigate the case, Perry v. Schwarzenegger. Opening statements will be followed by testimony from Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo, who comprise two couples who wish to be married but who were denied marriage licenses because of Proposition 8.

Olson and Boies notably represented George W. Bush and Vice President Al Gore respectively in the 2000 Supreme Court case that decided the presidency.

At trial, Chief Judge Vaughn R. Walker of the U.S. District Court, Northern District of California, will weigh witness testimony, a multitude of documents and other evidence, and arguments presented by some of the nation’s most distinguished attorneys.

“This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the United States Constitution,” the plaintiffs’ suit states.

According to the suit, Prop. 8:
— Violates the Due Process Clause by impinging on fundamental liberties.
— Violates the Equal Protection Clause of the Fourteenth Amendment.
— Singles out gays and lesbians for a disfavored legal status, thereby
creating a category of “second-class citizens.”
— Discriminates on the basis of gender.
— Discriminates on the basis of sexual orientation.

Olson and Boies will also point out the “crazy quilt” of separate, unequal and unconstitutional classifications of people that Prop. 8 has compelled the California government to create:

— Opposite-sex couples who have full marriage rights
— Same-sex couples who have no marriage rights
— Same-sex couples married between May and Nov. 2008 whose current
marriages are recognized, but who will be unable to remarry if widowed
or divorced
— Same-sex couples married in other states who may petition California
for recognition.

The defendants have the burden of demonstrating that Prop. 8 is narrowly drawn to serve a compelling government interest. Olson and Boies will demonstrate at trial, however, that the initiative fails to advance even a single legitimate interest. Tellingly, when asked by Chief Judge Walker at an Oct. 14 hearing to identify any harm to opposite-sex marriage that would result from marriage equality, the defendants’ attorney answered “I don’t know.”

The case against Prop. 8 has proceeded with uncommon speed toward trial. In an order issued after the first hearing in the case, Chief Judge Walker stated: “Given that serious questions are raised in these proceedings … the court is inclined to proceed directly and expeditiously to the merits of plaintiffs’ claims. … The just, speedy and inexpensive determination of these issues would appear to call for proceeding promptly to trial.”

“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the suit states, referring to the Court’s decision in Loving v. Virginia.

Chad Griffin, board president of the American Foundation for Equal Rights, noted that near the time when the Supreme Court struck down interracial marriage bans with its 1967 Loving v. Virginia decision, a Gallup poll found that 73 percent of Americans did not approve of interracial marriage.

While Gov. Arnold Schwarzenegger and Attorney General Jerry Brown were named defendants in their official capacities, along with other state and county officials, Prop. 8 is being defended in court by a prominent conservative organization, the Alliance Defense Fund. Gov. Schwarzenegger earlier filed a brief that did not dispute the unconstitutionality of Prop. 8, and called for swift action by the courts. Attorney General Brown, the state’s chief law enforcement officer, filed a brief agreeing with the plaintiffs’ position that Prop. 8 is unconstitutional.

The ACLU, Lambda Legal, and National Center for Lesbian Rights (NCLR) are participating in the case as amici (friends of the court) in support of the plaintiffs. The City and County of San Francisco, led by City Attorney Dennis Herrera and Chief Deputy City Attorney Therese Stewart, are supporting the plaintiffs’ team as co-counsel, with a specific focus on the negative impact Prop. 8 has on government services and budgets. Herrera and Stewart led the legal battle toward the California Supreme Court decision that struck down California’s previous same-sex marriage ban.

Olson is a former U.S. Solicitor General and is widely regarded as one of the nation’s preeminent constitutional lawyers, and has argued 55 cases in the U.S. Supreme Court. Boies ranks as one of the leading trial lawyers of his generation, having secured landmark victories for clients in numerous areas of the law. This is the first time they have served alongside each other as co-counsel.

Kris Perry and Sandy Stier have been together for nine years and are the parents of four boys. Perry is Executive Director of First 5 California, a state agency that promotes education and health for children under five. She holds a BA from the University of California, Santa Cruz and an MSW from San Francisco State University. Stier is Information Technology Director for the Alameda County Behavioral Health Care Services Agency. She is originally from Iowa and is a graduate of the University of Iowa. Perry and Stier first tried to marry in 2004, after the City of San Francisco began issuing licenses. They live in Berkeley, CA.

Paul Katami and Jeff Zarrillo have been together for eight years. Katami is a fitness expert and business owner who graduated from Santa Clara University before receiving his graduate degree from UCLA. Zarrillo is the General Manager of a theater exhibition company. A native of New Jersey, Zarrillo graduated from Montclair State University. Having wanted to marry each other for more than two years, they considered options including traveling to other states for a “civil union,” but felt any alternative fell short of marriage. They live in Burbank, CA.

They have issued the following joint statement: “We and our relationships should be treated equally under the law. Our goal is to advance the cause of equality for all Americans, which is the promise that makes this nation so great.”

Today’s draw was famous legal commentator SweetMelissa Griffin, who kicked things off by revealing to the judges a surreptitious recording that she had just made.

Melissa holding up her small recording device. So tricksy:

Click to expand

That led into an interesting conversation covering new media and our courts. (I’ll link to the video after it gets posted – these bits from John Steele and Kimberly A. Kralowec) should hold you until then). Be sure to listen for Judge Susan Illston talk about how she worked hard to be media friendly when preparing for the Barry Bonds trial and how she wonders just who the media is these days.

Speaking of which, there was a ton of media there, so you’ll be sure to hear more about this conference in the coming days.

It’s nice to see all the people in the federal court system working on these issues. Hurray!

Hey, are you a journalist, Blogger, New Media Content Provider and/or a person who reports on the business of courts? If so, you are in luck – word comes today from Kimo Crossman about a FREE half-day conference is coming up at San Francisco’s Old Federal Building (Big Blue) in the Tenderloin / Civic Center area on November 4, 2009. And to butter up all you ink-stained wretches beforehand, the 9th Circuit Office of the Circuit Executive is going on about how “old media” is “imploding.” Quelle surprise!

Sponsors: U.S. District Court for the Northern District of California and the U.S. Ninth Circuit Public Information and Community Outreach Committee.

To Attend: Journalists, bloggers, new media content providers and others reporting on the business of the courts are encouraged to attend. The event is free but space is limited.

Conference Program

How Blogs, Twitter and Social Media are Changing Legal Reporting – A half-day conference focusing on the changing nature of the news media and its coverage of the federal courts

Wednesday, November 4, 2009

1:00 p.m. Welcome

Hon. Judge Vaughn R. Walker, Chief District Judge
U.S. District Court for the Northern District of California

Hon. Marilyn L. Huff, District Judge, PICO Committee Chair
U.S. District Court for the Southern District of California

1:15 p.m. Media Mania and the Courts

With “old media” imploding and the “new media” exploding, just who is reporting on the courts these days and how are they doing it? What should judges and courts expect from the new media? Join a distinguished panel in discussing how court coverage is changing and what that means for accuracy and access.

Panelists:
James R. Bettinger, Director
Knight Fellowships Program Stanford University

Melissa Griffin, Blogger
TheSweetMelissa.com

Hon. Susan Y. Illston
U.S. District Judge, Northern District of California

Who qualifies as a journalist and does it really matter anymore? Are bloggers the new court reporters? How have courts responded to the challenge of instant reporting via wireless communications devices? Join a judge, a working journalist, legal blogger and Internet law expert in a discussion of new media in the courtroom.

Panelists:
Hon. Jeremy Fogel
U.S. District Judge
Northern District of California

The Conference is sponsored by the United States District Court for the District of Northern California and the Ninth Circuit Public Information and Community Outreach Committee. The program will take place at the Phillip Burton Federal Building and U.S. Courthouse in San Francisco.

Parking
The courthouse does not have a public parking lot.Public parking lots are available on 735 Van Ness between Turk & Eddy streets (open until 5:30 p.m.), and at the corner of Golden Gate and Larkin streets. The Civic Center Garage is also available on McAllister Street between Polk and Larkin streets.